Gauhati High Court
Page No.# 1/14 vs Md. Kumar Ali And Ors on 18 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/14
GAHC010117052024
2025:GAU-AS:8192
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/162/2010
MUSTT. MALEKJAN BEWA and 2 ORS
W/O LATE TASUMUDDIN SK.
2: ON THE DEATH OF MD. KHATIMAMUD SK
HIS LEGAL HEIR BULBULI BIBI WIFE
2II MINAR ALI SON 2III KHUSHIDA BEGUMDAUGHTER
3: ABUL SK
S/O LATE JYOTI MAMUD SK. ALL ARE RESIDENTS OF VILL. GHUNIMARI
P.S. CHAPAR
DIST. DHUBRI
ASSAM.
VERSUS
MD. KUMAR ALI and ORS
S/O LATE TASADDI SK.
2:UMAR ALI
S/O -DO-
3:MUSTT. JULEKHA BEWA
W/O LATE KHOKAMAMUD SK.
4:MD. JOYNAL HOQUE
5:MD. MOINAL HOQUE
Page No.# 2/14
6:MOFIDUL HOQUE
7:MD. MOHIBUL HOQUE
8:MD. MONIRUL HOQUE
SERIAL NO. 4 TO 8 ARE SONS OF LATE KHOKAMAMUD SK. ALL ARE R/O
VILL. KAZIPARA PART-I
P.S. CHAPAR
DIST. DHUBRI
ASSAM.
------------
For the Appellant(s) : Mr. A. Biswas, Advocate
For the Respondent(s) : Ms. R. Choudhury, Advocate
Date of Hearing : 18.06.2025
Date of Judgment : 18.06.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. A. Biswas, the learned counsel appearing on behalf
of the appellants.
2. Ms. R. Choudhury, the learned counsel appears on behalf of the
respondent Nos. 2a to 2 g, 3, 4, 5, 6 and 7. She further submitted
that she has instruction(s) to appear on behalf of the newly
substituted respondent Nos. 1.1, 1.2, 1.3 and 1.4.
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3. This is an appeal filed under Section 100 of the Code of Civil
Procedure, 1908 (for short, "the Code") challenging the judgment and
decree dated 30.04.2010 passed by the learned Court of the Civil
Judge, Dhubri (hereinafter referred to as, "the learned First Appellate
Court") in Title Appeal No. 37/2005 whereby the appeal was
dismissed thereby affirming the judgment and decree dated
30.07.2005 passed by the learned Court of the Civil Judge, (Junior
Division) No. 1, Dhubri (hereinafter referred to as, "the learned Trial
Court") in Title Suit No. 307/1999.
4. It is seen that the learned Coordinate Bench of this Court vide an
order dated 20.08.2010 admitted the instant appeal by formulating a
substantial question of law which reads as under:
"1. Whether the Appellate Court misread the provisions of Order II Rule 2 of
the Code of Civil Procedure, 1908 and Section 34 of the Specific Relief Act, 1963
and if so, what will be its effect? "
5. The question arises before this Court, as to whether, the said
substantial question of law so formulated by the learned Coordinate
Bench of this Court is involved in the present appeal.
6. For ascertaining the same, this Court briefly would like to take
note of the facts which led to the filing of the present appeal.
7. The respondents herein, as plaintiffs had instituted a suit seeking
various reliefs. Taking into account the substantial question of law so
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formulated by the learned Coordinate Bench of this Court, this Court
finds it apposite to reproduce the reliefs which have been sought for
by the plaintiffs in the said suit herein below:
"a. A decree declaring the plaintiffs right, title, interest and possession in the
land of Schedule-B.
b. A decree declaring that the defendant Nos. 1 to 12 had no right to sell
the entire land of Khatian No. 59 and that the sale deeds Nos. 1228, 1229 of
Dhubri Sub-registration Office, dated 4.6.97, executed in favour of the
defendant Nos. 20, 21, 22 purporting to transfer the entire land of Khatian No.
58 are fraudulent illegal and not binding upon the plaintiffs.
c. A decree declaring that by virtue of the sale deeds Nos. 1228, 1229 and
1232, defendants Nos. 20, 21 and 22 have acquired no right, title and interest
in the land of Schedule- B.
d. A decree declaring that the plaintiffs are entitled to get separate patta for
the land of schedule-B in their names.
Alternately,
A decree declaring that the plaintiffs are entitled to the partition of the land of
schedule-A as per provision of the Assam Land Revenue Regulation on the basis
of the share of the plaintiffs already affected and possessed by them.
e. A decree of permanent injunction restraining the defendants their agents
from dispossessing the plaintiffs from their part of the land of schedule-B and
from disturbing their possession therein in any manner.
f. A decree of cost and any other decree in which the plaintiffs may be
entitled to law euity."
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8. The facts on which the plaintiffs had instituted the suit is that a
plot of land admeasuring 6 Bighas 1 Katha 19 Lechas recorded in a
single Dag No. 118 of final Khatian No. 59 which stood jointly in the
names of 8 (eight) Khatiandars namely Tasaddi Sk., Punna Sk.,
Sarbeswar Roy, Rajeswar Roy, Kalicharan Roy, Balit Chandra Roy,
Kamala Kanta Roy and Jagyeswar Roy. It was mentioned that though
the land happened to be recorded in the joint Khatian, Tasaddi Sk.
and Punna Sk. in no way were related to the other Khatiandars and
they used to own and possess separately the southern half part of the
plot of land while the northern half plot of land was possessed by the
other 6 (six) Khatiandars.
9. It was further mentioned that except Balit Chandra Roy and
Jagyeswar Roy all other Khatiandars had died. While Sarbeswar Roy,
Rajeswar Roy, Kalicharan Roy and Kamala Kanta Roy were succeeded
by the defendant Nos. 1 to 11 and 14 to 19, Punna Sk. died leaving
his only niece, Urmani Bibi, the wife of Tasaddi Sk. Later on, Tasaddi
Sk. also died, followed by his wife Urmani Bibi's and son namely
Khokamand Sk. The plaintiff Nos. 1 and 2 and the proforma
defendants Nos. 1 and 2 are the surviving sons and daughters of
Tasaddi Sk., while the plaintiff Nos. 3 to 8 and proforma defendants
Nos. 3 to 7 are the heirs of Khokamand Sk. They all inherited the part
of the land left behind by Punna Sk. And Tasaddi Sk. in Khatian No. 59
and by family arrangement, the plaintiffs had been using and
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possessing the same as described.
10. It was further stated in the plaint that due to construction of the
road touching the western boundary of the plaintiff's part of the land,
the total area of the Khatian No. 59 measured 6 Bighas 1 Katha 1
Lecha during the subsequent conducted settlement operation and was
fraudulently managed and recorded in the two names of Kalicharan
Roy and Jagyeswar Roy in Katcha Patta No. 127 Dag No. 274 which
was subsequently brought under Patta No. 127 Dag No. 274 and Patta
No. 731 Dag No. 274/1096 as described in Schedule A. An objection
was filed during the mutation and the names of sons of Tasaddi Sk.
were included in the Patta vide order passed by the A.S.O., Chapar on
22.01.1997 in Mutation Case No. 38/96.
11. It was further stated that excluding the 3 Bighas 0 Katha 19½
Lechas belonging to the defendants Nos. 1 to 19 from the northern
part of the Dag No. 274, the plaintiffs possessed 3 Bighas 0 Katha 1½
Lechas from Schedule A covered by the entire Dag No. 274/1096 and
the contiguous southern part of Dag No. 274 as described in Schedule
B. It was alleged in the plaint that the defendant Nos. 1 to 12
conspired with the defendant Nos. 20 and 22 who illegally tried to
trespass into the plaintiff's land in the month of February, 1997
whereupon, the plaintiff No. 1 filed Misc. Case No. 92/97 before the
S.D.M, (Ex), Bilasipara wherein the suit land was attached under
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Section 145/146 of the Cr.P.C. on 06.08.1997, but the same was
vacated by the Sessions Court, Dhubri on 28.11.1997 in C.R. Case No.
30/1997. During the said proceedings, being Misc Case No. 92/97, it
came to light that the defendant Nos. 1 and 12 were claiming rights
over the suit land on the basis of Sale Deed Nos. 1228, 1229 and
1232 dated 04.06.1997 which were executed fraudulently and behind
the back of the plaintiffs.
12. On coming to learn, the plaintiffs filed a suit being Title Suit No.
346/1997 before the learned Court of the Civil Judge (Junior Division),
Dhubri for appropriate reliefs and during the pendency they also came
to learn about another Deed being Deed No. 1232 from the written
statement filed by the opposite party in Misc. Case No. 92/97 which
ended indecisively with a direction to the complainant to seek relief in
the Civil Court. Thereupon, there were certain talks of compromise
which however did not lead to a resolution to the dispute and under
such circumstances, the suit being Title Suit No. 307/1999 was filed
seeking the reliefs as above mentioned.
13. It is seen that in the suit, the defendant Nos. 12 and 20 to 22
filed their written statement wherein various preliminary objections
were taken, including the preliminary objection that the suit was bad
under Order II Rule 2 of the Code and under Section 34 of the
Specific Relief Act, 1963 (for short, "the Act of 1963"). In the written
Page No.# 8/14
statement, it was categorically stated that the defendant Nos. 20 to
22 purchased the land measuring 6 Bighas 2 Kathas 19 Lechas i.e.
Schedule A land and got delivery of possession and have been
possessing the same. It was mentioned that the Title Suit filed earlier
being Title Suit No. 346/1997 was dismissed on 24.02.1999 and as
such on the principles of res judicata, the subsequent suit was not
maintainable. It was further specifically mentioned at paragraph No.
17 of the written statement that the plaintiffs were not in possession
of the Schedule B land. Additionally, it was mentioned that Late Punna
Sk. and Late Tasaddi Sk. had no right, title and interest in the suit
land and accordingly, the plaintiffs have also no right, title and interest
over the suit land.
14. On the basis of the pleadings, the learned Trial Court framed as
many as 13 (thirteen) issues, which being relevant are reproduced
herein under:
"1. Is the suit maintainable?
2. Is there any cause of action for this suit?
3. Is the suit barred by limitation?
4. Is the suit bad for under valuation?
5. Is the suit bad under order 2 rule-2 of C.P.C. and U/s. 34 of the
Specific Relief Act?
6. Is the suit barred by res judicata?
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7. Whether this court has pecuniary jurisdiction to try this suit?
8. Is the suit bad for non-joinder and mis-joinder of necessary
parties?
9. Whether Late Tasaddi Sk. And Poona Sk. had right, title, interest
and possession over the suit land?
10. Whether the plaintiffs have right, title, interest and possession over
the B-schedule land?
11. Whether Sale Deed Nos. 1228, 1229 & 1232 dated 4.6.97 are
fraudulent, illegal and not binding upon the plaintiffs?
12. Whether the plaintiffs are entitled to the decree as prayed for?
13. To what relief, if any, the parties to the suit may be entitled to?"
15. Issue No. 5 is in connection with the substantial question of law.
It is seen that the learned Trial Court, while deciding the said issue
No. 5, observed that there was no material particulars either in law or
on fact in the pleadings of the contesting defendants to show that the
suit is bad under Order II Rule 2 of the Code and under Section 34 of
the Act of 1963 and it appears that the issue was framed mechanically
and hence struck off.
16. This Court further finds it relevant to take note of the discussion
in issue Nos. 9. and 10 whereby the learned Trial Court after taking
into account the evidence on record, came to a categorical finding
that the plaintiff had got right, title and interest along with possession
Page No.# 10/14
over the Schedule B land. This aspect of the matter is being taken
note of taking into account that it also touches on the proviso to
Section 34 of the Act of 1963.
17. The learned Trial Court decreed the suit in favour of the plaintiffs
by declaring the right, title and interest of the plaintiffs over the
Schedule B land and their possession thereon was confirmed. The
Registered Sale Deed Nos. 1228, 1229 and 1232 dated 04.06.1997 of
the Dhubri Sub-Registry Office executed in favour of the defendant
Nos. 20, 21 and 22 were declared fraudulent, illegal and not binding
on the plaintiffs. It was also declared that the plaintiffs are entitled to
get separate Patta in respect to the Schedule B land. The defendants
were perpetually restrained from dispossessing the plaintiffs from the
Schedule B land. However, the learned Trial Court was not inclined to
impose any costs.
18. Being aggrieved, the Appellants herein filed an appeal before the
learned First Appellate Court which was registered and numbered as
Title Appeal No. 37/2005. It is relevant at this stage to take note of
the grounds of objection so taken in the memo of appeal so filed by
the appellants before the learned First Appellate Court insofar as
Order II Rule 2 of the Code and Section 34 of the Act of 1963. The
said grounds of objection mentioned were grounds of objection Nos. 4
and 5 which are reproduced herein under:
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"4) For that, the learned Court below, misconceived the provision of Or. 2 R.2
C.P.C.-2(1) Suit to include the whole claims- Every suit shall include the whole
of the claim which the plaintiff is entitled to make in respect of the cause of
action.
5) For that, the learned court ought to have held that the suit of the
plaintiff is bad under specific relief Act U/s 34 of the Act and U/O. 2 R.2 C.P.C.
and decided the issue no. 5 against the plaintiff/respondents."
19. From the said grounds of objection so taken, it transpires that
mechanically the appellants without reference to any material facts
raised the objection on the basis of Order II Rule 2 of the Code and
Section 34 of the Act of 1963. There was no clarity even after the
decision of the learned Trial Court in respect to the issue No. 5, as to
how, Order II Rule 2 of the Code and Section 34 of the Act of 1963
would be involved. The learned First Appellate Court had taken note
of the said submissions so made in respect to Order II Rule 2 of the
Code and Section 34 of the Act of 1963 as would be apparent from
the judgment of the learned First Appellate Court and observed that
for the purpose of application of Order II Rule 2 of the Code, it has to
be only in respect to a subsequent suit and as the said suit was not a
subsequent suit, the question of Order II Rule 2 of the Code did not
apply.
20. It is further relevant to take note of that the learned First
Appellate Court vide the judgment and decree dated 30.04.2010
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dismissed the said appeal by affirming the judgment passed by the
learned Trial Court.
21. In the backdrop of the above, let this Court now consider, as to
whether, the substantial question of law so formulated is at all
involved in the instant appeal.
22. Mr. A. Biswas, the learned counsel appearing on behalf of the
appellants submitted that a perusal of the reliefs which have been
sought for would show that in Relief No. (b), there is no declaration
sought for that the Deed of Sale bearing Deed No. 1232 was
fraudulent, illegal and not binding upon the plaintiffs and therefore
without the said declaration sought for, the Sale Deed No. 1232 dated
04.06.1997 could not have been declared to be fraudulent.
23. It is relevant to take note of that the perusal of paragraph Nos. 7
and 11 and 12 of the plaint, it is categorically mentioned that the said
Deed Nos. 1228, 1229 and 1232 dated 04.06.1997 were fraudulently
executed behind the back of the plaintiffs. It is also relevant to take
note of that the well settled principles of law stipulate that the plaint
has to be read as a whole and not merely on the basis of the reliefs
so sought for. In this regard, reference can be made to the judgment
of the Supreme Court in the case of Corporation of the City of
Bangalore Vs. M. Papaiah & Another reported in (1989) 3 SCC 612 .
Under such circumstances, the said submission is misconceived.
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24. Now coming back to the substantial question of law, it is relevant
to take note of that the reliefs which have been sought for would
come within the ambit of further reliefs as mentioned in the proviso to
Section 34 of the Act of 1963.
25. The learned counsel appearing on behalf of the appellants
though submitted that there was no specific demarcation sought for
taking into account that the Deeds of Sale made by the defendants
Nos. 1 to 12 in favour of the defendant Nos. 20 to 22 included the
entire Schedule A land and therefore there was a requirement of a
partition which ought to have been sought for. The said submission, in
the opinion of this Court appear to be misconceived taking into
account the relief sought for at Serial No. (d) of the plaint.
Accordingly, the substantial question of law so formulated by the
learned Coordinate Bench of this Court vide the order dated
20.08.2010, in the opinion of this Court is not involved in the instant
appeal.
26. Before parting with the record, this Court however finds it very
pertinent to observe that the Deeds of Sale bearing Deed Nos. 1228,
1229 & 1232 executed by the defendant Nos. 1 to 12 in favour of the
defendant Nos. 20, 21 and 22 all dated 04.06.1997 relates to the
entire Schedule A land and Schedule B land is a part fo the Schedule
A land. Further the claim of the plaintiffs is only restricted to Schedule
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B land.
27. Considering the above, this Court therefore in exercise of the
powers under Order XLI Rule 33 of the Code modify the decree so
passed by the learned Trial Court thereby adding a declaration that on
the basis of the Sale Deed Nos. 1228, 1229 and 1232 dated
04.06.1997 the defendant Nos. 20, 21 & 22 have not acquired any
right over the Schedule B land which was the relief sought for.
However, the defendant Nos. 20, 21 and 22 on the basis of the Sale
Deed Nos. 1228, 1229, 1232 dated 04.06.1997 shall have rights in
respect to the remaining part of the Schedule A land excluding the
Schedule B land. The decree passed by the learned Trial Court save
and except what has been inserted above remains.
28. With the above, the instant appeal stands disposed of. There
shall be no order as to costs.
29. Send back the LCR.
30. The Registry shall draw up a fresh decree in view of the
modification of the decree.
JUDGE
Comparing Assistant
